The defendants' appeal is based upon the denial of their motion to set the verdict aside and also upon errors they alleged to have been committed on the trial. The determination of the plaintiff's right to recover as a matter of law upon the facts which she may rightfully claim to be supported by substantial evidence in the case, in reliance upon which the jury might reasonably have reached its conclusion, will go far to decide all the issues raised by the appeal. These facts may be summarized as follows: The plaintiff is a real-estate broker. The owners of a certain building, whom we shall call the Carayanis brothers, listed it with her for sale, for a time giving her the exclusive agency, and later continuing it in her hands for sale under a general agency. During the period of her exclusive agency, the plaintiff interested the defendant William J. O'Brien in the purchase of the property, and, not being able to negotiate the sale before that agency expired, she continued her efforts thereafter. Finally she secured from him an offer to pay $90,000 in cash above existing incumbrances. This offer she *711 promptly submitted to the Carayanis brothers, and they signified they would accept it. The plaintiff, as soon thereafter as she could, got in touch with O'Brien and arranged an appointment with him to meet her in order to sign a contract of purchase. This appointment he did not keep, and when the plaintiff saw him soon after, he indicated to her that he was no longer interested in the purchase of the property. At this conversation the plaintiff told him she believed it could be bought for $85,000 above the amount of the existing mortgages. The plaintiff was not able to fix the precise dates of her interviews with O'Brien after the making of his offer of $90,000, but, at about the time of her meetings with him, the defendant Hyman Wolfson approached O'Brien and advised him that he could purchase the building for $85,000 above existing incumbrances, and O'Brien gave him $1,000 to be used by him to bind the bargain, if he found he could get it for the price named. Wolfson then made to the Carayanis brothers an offer to buy the building at that price. They told him of the offer received from O'Brien through the plaintiff, and were assured that the purchaser whom Wolfson was representing was not O'Brien. Wolfson also told them that if the sale was made, they would incur no liability for a commission. The Carayanis brothers accepted the offer of purchase, and Hyman Wolfson brought the defendant Max Wolfson to them, and told them that he was the purchaser. They then executed a contract to sell the building to Max Wolfson at the price agreed upon, believing him to be the real purchaser, and he paid them $1,000, money furnished him by O'Brien. Max Wolfson never intended to purchase the property for himself, and the next day he assigned his rights under the contract to O'Brien. Later, the Carayanis brothers carried out their obligations under the contract by *712 conveying the property to O'Brien. The Carayanis brothers acted throughout in good faith and reduced their price to $85,000 above incumbrances, in their contract with Max Wolfson, because thereby they were able to avoid payment of any brokerage commission.
O'Brien's reasons for abandoning the negotiations which were being carried on by the plaintiff and entering upon those instigated by Hyman Wolfson, and the latter's reason for interesting himself in the matter, are evident; the latter was to be compensated by O'Brien for his services in the matter, but even with that compensation added, the property really cost O'Brien considerably less than the $90,000 above incumbrances, which he had offered through the plaintiff. One cannot doubt, too, that the Wolfsons were aware throughout of the situation with reference to the negotiations between the plaintiff and O'Brien. As already noted, the plaintiff is unable to fix the exact day of the appointment she made with O'Brien for the execution of a contract, but there is evidence from which it could reasonably be concluded that the plan to have Wolfson offer $85,000 was made about the same day; if this conclusion is brought into relationship with the fact that O'Brien indicated to the plaintiff at their next meeting that he was no longer interested in the premises, there is ample basis for an inference that O'Brien abandoned his negotiations through the plaintiff in reliance upon the plan he had made with Wolfson to get the building at a less cost. The fact that O'Brien took the assignment of the contract made between Carayanis brothers and Max Wolfson the day after it was executed, certainly strongly indicates that he was also a party to, or adopted as his own, the false representations as to the real purchaser by which the sale was brought about. The facts clearly point to the conclusion that those representations were *713
made under such circumstances as to constitute a fraud upon the Carayanis brothers which would have justified their repudiation of the contract and refusal to convey the premises to Max Wolfson, or to O'Brien, a party to the fraud. Morrow v. Ursini,
The general listing of property with a real-estate broker for sale, without special agreement, does not give rise to such mutual obligations as in themselves constitute a contract. 1 Mechem, Agency, § 31. Such a listing of property approximates rather an offer by the owner, which he may withdraw at any time, but which ripens into a contract when the broker meets its terms by producing one who is able, ready, and willing to buy on the terms stated, or on terms satisfactory to the owner. Harris v. McPherson,
The foregoing discussion substantially disposes of the other reasons of appeal, all of which are based upon the charge as given, or the refusal of the court to charge as requested. The charge as given concisely and adequately laid the issues before the jury. The trial court stated the two vital elements in the plaintiff's case to be these: Would the plaintiff have earned a commission had it not been for the acts of the defendants? Was she prevented from earning it by a fraudulent conspiracy on their part? Of the court's instructions as to the first issue, no complaint is made. As to the second, the court read to the jury certain requests to charge which clearly presented the matter in accordance with the principles we have stated. There was, perhaps, an over-emphasis upon the need of the plaintiff to establish a conspiracy between the *716
defendants; the misrepresentations having been made by the Wolfsons, participation in their wrongful conduct by O'Brien would of necessity have to be shown, as in the case of any tort alleged to have been committed by more than one person; but if such participation were established, nothing further in the way of a conspiracy need have appeared. Wyeman v.Deady,
There is no error.
In this opinion the other judges concurred.